Advertising law: noise in alpine country
Successfully defending intellectual property against third parties is not always as easy as it might seem at first glance. By Ueli Grüter
Plagiarism seems to be booming. The new iPad watch is strongly reminiscent of the Swiss train station clock, and the fashion label "Alprausch" is apparently now also offering sweets. While the iPad watch issue is over, the fashion label "Alprausch" is sharpening its knives. The company is not prepared to tolerate a confectionery manufacturer branding its latest creations with the name and look of the fashion label without being asked. While the Tages-Anzeiger accuses the confectionery manufacturer of intellectual theft, the latter says he is not a copyist, but a creative one. He was "inspired" by the Alpine ethno style. The Tages-Anzeiger also speculates that the fashion label is probably struggling to enforce its rights against the confectionery manufacturer. Is that the case?
The fashion label does not use the term "Alprausch" in its name. However, one of its stores is operated by an "Alprausch" company. As the confectionery manufacturer runs its website under the name "Alprausch", the "Alprausch" company could object that this leads to confusion under company law. The fashion label "Alprausch" owns various "Alprausch" brands for various goods and services. The managing director of the fashion label told the Tages-Anzeiger newspaper that it had registered the name "Alprausch" "as far away as the Indies" for various products, but not for the confectionery now produced by its competitors. All goods and services protected by a trademark can only be claimed during the first five years. After that, the trademark only enjoys protection for goods and services that are actually offered on the market. As a glance at the fashion label's website shows, it obviously does not sell confectionery. Consequently, trademark protection is unlikely to apply in this specific case.
Furthermore, the term "Alprausch" is probably not protected by copyright. If the term "Alprausch" were an original neologism, the word itself could be protected by copyright. However, "Alp" is a synonym for "Alm", and "Almrausch" is an alpine rose according to Duden.
In its report, the Tages-Anzeiger claims that the confectionery manufacturer has "copied the design and graphic appearance from the fashion label to an extent that goes far beyond the usual". If this were the case, the fashion label could take action against the confectionery manufacturer based on copyright and/or unfair competition law. The Tages-Anzeiger primarily cites the "Alprausch" lettering, which is "almost identical to the original". However, a comparison of the opponents' homepages shows that the fashion label has not chosen a special and therefore not particularly original lettering. It simply adds a cross in front of the name "Alprausch", which is not particularly distinctive. It is therefore irrelevant that the confectionery manufacturer also uses a Swiss cross in its "Alprausch" logo. The product and advertising designs of the model label and confectionery manufacturer are based on the elements of wood, rock and, in some cases, the typical check pattern of tablecloths. As the Tages-Anzeiger notes, these are often found in hotels, restaurants and stores in tourist resorts in the Alps and are therefore not particularly individualizing. The case shows: If intellectual property is to be successfully defended against third parties, the following are also required from a legal perspective: 1. originality, 2. originality and 3. originality. Just noise in the Alps is not enough.
Ueli Grüter, LL.M., attorney at law, Grüter Schneider & Partner AG, Zurich, is a lecturer in communications law and co-editor of the book Kommunikationsrecht.ch. He comments on current legal issues in advertising once a month in Werbewoche. Questions for the Werbewoche legal expert at [email protected].
